The Leader-Herald: Cuomo proposes changes to equal-pay provision

ALBANY - Under the current state Labor Law's Equal Pay provision, employees who perform the same job cannot be paid differently based on their gender.

There are several exceptions to that rule. For example, seniority or a merit system may affect workers' wages.

Women working full time in this state earn 84 percent of what men earn according to the state Labor Department. Nationally, according to the U.S. Department of Labor, women in 2010 earned 77 cents for every $1 men earned in full time work. In 2011 the median full-time working woman made 81.6 percent of the wages of the median full-time working man.

The number of hours worked per week varied the statistic, though. Among men and women who work 40 hours per week, women earned 87 percent of what men earned.

Bring the number down to 30 to 34 hours per week and women earned more - 109 percent - than what men earned in 2010.

In navigating the gender wage gap, there are a number of studies and statistical comparisons that come out either way depending on variables.

Fact Box

10-Point Proposal

Gov. Andrew Cuomo included the following in his proposed 10-point Women's Equality Act:

1. Protect a Woman's Freedom of Choice by Enacting the Reproductive Health Act

2. Achieve Pay Equity

3. Stop Sexual Harassment in All Workplaces

4. Allow for the Recovery of Attorneys' Fees in Employment and Credit and Lending Cases

Liz Russo, American Association of University Women Amsterdam-Gloversville-Johnstown chapter co-president, said a better comparison would come from reviewing a man and woman in the same job working the same hours.

"You can put a spin on things either way, and I think that studies have been done better comparing apples to apples and showing that there is a discrepancy. I do understand completely what people are talking about - maybe women don't stay in the workforce as long or take a break to have children. They may work in different jobs, but if you want to do a better comparison you have to compare specifics," Russo said.

Either way, Russo said, she supports a number of measures proposed by Gov. Andrew Cuomo in his State of the State address Jan. 9 in the 10-point Women's Equality Act.

Cuomo noted New York has played an important role in the womens' rights movement with Johnstown the birthplace of Elizabeth Cady Stanton and the Women's Rights Convention in Seneca Falls.

"We try to keep that alive through our history and our activities. We remind women and men in the area of what we have here and where it started, and why we need to keep going," said Linda Hammond, who also serves as co president of the local AAUW.

Under the current law people who prove discrimination in wages can get back pay to make up the difference for what they would have earned if they were paid equally to their peers. This means a successful plaintiff in a wage discrimination case is entitled to 100 percent of the back wages due.

Cuomo proposed increasing that to 300 percent of back wages.

"Doing so will make women whole and at the same time encourage all employers to evaluate their current practices," Cuomo said.

Russo said the 300 percent mark could be a place to start negotiating with other lawmakers, and while it may seem high it could deter employers from appearing to pay men and women of equal ability and seniority differently.

But how can a woman working in the private sector know she is being paid less than a man, Russo asked. Russo was a teacher, and working in the public sector salaries were public information, and teachers are paid based on their step status. Private sector salaries, especially in upper management, are often negotiated between the employee and employer.

Cuomo's plan also would redefine the exceptions within the labor law rule that employers can use to defend wage disparities between genders. Under the proposal, employers would also be prohibited from terminating or retaliating against employees who share wage information.

"Very often women will not ask for a particular salary when they are getting the job," Russo said. That's one reason the AAUW offers a program called Smart Start, which can be presented at colleges for women graduating.

"It can help them understand how to negotiate salaries so when they go in [for an interview] they won't just be so happy to get the job that they will just accept whatever is put in front of them whereas men will traditionally ask for a salary [figure]," Russo said.

Why would women simply accept a salary figure instead of asking for what they want?

"Probably society," Russo said. "Women can be more accepting of what is presented to them rather than be willing to challenge it, and that's something the AAUW is going forward and trying to train women [on]."

Hammond agreed and said the wage disparity is not likely in lower paying or entry-level work where salaries are set. It's when it comes to negotiating a salary. Not allowing employers to enforce policies that discipline employees for sharing wage information is a step in the right direction, she said.

"I think for the most part employees will talk to each other. I think when you see more of it is when you get more into the upper management," Hammond said. "Where we start seeing wage discrimination is once you start to climb up toward the ceiling."

The National Organization for Women-New York State chapter supported Cuomo's proposal. In a news release, the organization said: "The governor admitted that New York state has fallen behind in its rightful place as a leader on women's equality," and said the state where women make up 51 percent of the population, is "ready to endorse full equality for women."

NOW is a womens' activist organization that leans left in its causes and has chapters in all 50 states.

Other womens' groups, such as the right-leaning research institution Independent Women's Forum, take the position that the wage disparity is the result of choices women make in how many hours they work and what jobs they choose.

"Feminist groups disserve women by promoting the false idea that the U.S. workplace is overwhelmingly sexist. It encourages unnecessary meddling from the federal government, which could limit women's job opportunities and workplace flexibility, and discourages women from fully pursuing their ambitions," according to a publication by that organization on the wage gap. "Women are better off understanding that it's the decisions they make -not systematic sexism - that determine how much they earn."

Russo and Hammond said there have been advancements in womens' rights in the work place, but there is still work to do.

"I think there are more women in non-traditional careers now," Russo said, such as engineers, firefighters, police or school superintendents.

"There's perhaps a better chance for women to move upward and hold positions, I think, because of the awareness of all this going on. Perhaps employers are doing a better job, but there's more that needs to be done," Russo said.

Another proposal in Cuomo's plan would amend state law so that the size of the workplace doesn't affect whether sexual harassment complaints will be heard.

Currently employees cannot file a complaint with the state if they work at a business with fewer than four employees because those small companies are exempt from the provision of state law that prohibit harassment.

Cuomo said more than 60 percent of the state's employers have less than four employees.

"I definitely agree with that one," Hammond said. "It levels the playing field for all employees."

Russo said a recent AAUW conference in April in Rochester highlighted the fact that people who are working temporary jobs or in a job outsourced by a larger company, filing sexual harassment or wage discrimination complaints is complicated.

"That's a real wakeup call because there are many large companies that do that," Russo said.

Other business related elements of Cuomo's proposal include allowing the awarding of reasonable attorneys fees for people who sue for employment, credit and lending discrimination.

Under current state law, people who file suit claiming discrimination over employment, credit and lending cannot recover attorneys fees even after proving discrimination.

Cuomo proposes amending the law to include a provision for reasonable attorneys' fees recovery for successful litigants.

State law protects people from discrimination because of their family status when trying to get housing, but not employment specifically.

Cuomo also proposes protecting people from being discriminated against for employment because of family status.

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Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.